Citation Nr: 0432774
Decision Date: 12/10/04 Archive Date: 12/15/04
DOCKET NO. 03-26 622 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to an initial increased rating for
degenerative joint disease of the right knee, currently
evaluated as 20 percent disabling.
2. Entitlement to an increased rating for status post
arthroscopic meniscectomy of the right knee with anterior
cruciate ligament reconstruction and with laxity, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from September
1987 to April 1991.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating action of the
Department of Veterans Affairs Regional Office (RO) in No.
Little Rock, Arkansas. In that decision, the RO granted
service connection for degenerative joint disease of the
right knee and awarded a 10 percent evaluation to this
disability, effective from September 11, 2000. Also by the
August 2002 rating action, the RO denied the issue of
entitlement to a disability rating greater than 10 percent
for the service-connected status post arthroscopic
meniscectomy of the right knee with anterior cruciate
ligament reconstruction and with laxity. In an August 2003
rating action, the RO awarded an increased evaluation of
20 percent, effective from January 10, 2003, for the
service-connected degenerative joint disease of the right
knee.
REMAND
At the most recent VA examination, which was conducted in
January 2003, the veteran complained of daily right knee pain
(on a scale of 10 out of 10) as well as stiffness, swelling,
heat and redness, instability, "locking," fatigability, and
lack of endurance in this joint. A physical examination of
the veteran's right knee demonstrated flexion from zero to
68 degrees; extension of minus 12 degrees; pain on motion at
68 degrees of flexion; stable medial and lateral collateral
ligaments; stable anterior and posterior cruciate ligaments;
and a negative McMurray's test (with regard to the right
medial and lateral meniscus).
At the personal hearing subsequently conducted before the
undersigned Veterans Law Judge at the RO in March 2004, the
veteran testified that his right knee condition has increased
in severity since the last evaluation. Hearing transcript
(T.) at 3. In particular, the veteran described increased
pain, locking, swelling, stiffness, and limitation of motion.
T. at 3-8, 13-14.
Thereafter, in April 2004, the veteran underwent a private
examination of his right knee. At that time, he complained
of "quite a bit of pain" in his right knee (primarily in
the medial aspect of the joint) as well as difficulty walking
or completing any type of ambulatory endeavors. The
veteran's treating physician, who conducted the examination,
concluded that the veteran has "some worsening" of his
condition over the past two years.
Accordingly, further appellate consideration will be deferred
and this case is REMANDED for the following actions:
1. The RO should make arrangements with
the appropriate VA medical facility for
the veteran to be afforded a VA
examination to determine the nature and
extent of the service-connected
degenerative joint disease of the right
knee and the service-connected status
post arthroscopic meniscectomy of the
right knee with anterior cruciate
ligament reconstruction and with laxity.
The claims folder must be made available
to the examiner in conjunction with the
examination. All indicated tests,
including X-rays, should be conducted.
The examiner should note all relevant
pathology associated with the veteran's
service-connected right knee
disabilities. In particular, the
examiner should provide the range of
motion of the veteran's right knee and
should note the presence (including
degree of severity) or absence of any
subluxation or lateral instability of
this joint resulting from
service-connected disability.
Furthermore, the examiner should note
whether the veteran's right knee exhibits
weakened movement, excess fatigability,
or incoordination attributable to the
service-connected disability. If
feasible, this determination should be
expressed in terms of the degree of
additional range of motion lost. The
examiner should also express an opinion
as to the degree to which pain could
significantly limit functional ability
during flare-ups or when the veteran uses
his right knee repeatedly over a period
of time.
2. The RO should then re-adjudicate the
issues of entitlement to an initial
disability rating greater than 10 percent
for degenerative joint disease of the
right knee September 11, 2000 to
January 9, 2003; entitlement to an
initial disability rating greater than
20 percent for degenerative joint disease
of the right knee since January 10, 2003;
and entitlement to a disability rating
greater than 10 percent for status post
arthroscopic meniscectomy of the right
knee with anterior cruciate ligament
reconstruction and with laxity. If the
decisions remain in any way adverse to
the veteran, he and his representative
should be provided with a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include the applicable law and
regulations considered pertinent to the
issues on appeal as well as a summary of
the evidence of record. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. This appeal is remanded to the RO via the Appeals
Management Center in Washington, DC. No action is required
of the veteran until he is notified by the RO; however, the
veteran is advised that failure to report for any scheduled
examination may result in the denial of his claim. 38 C.F.R.
§ 3.655 (2004). The veteran has the right to submit
additional evidence and argument on the matters that the
Board has remanded to the RO. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§
5109B, 7112).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).